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MOMCILO FILIPOVIC, Plaintiff,
vs.
K & R EXPRESS SYSTEMS, INC., Defendant.
 
Case:
No. 95 C 6741
 
Location:
UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS, EASTERN DIVISION
 
Date:
December 16, 1997, Decided
 
Attorneys:
For MOMCILO FILIPOVIC, plaintiff: Mari Henry Leigh, Michael Irving Leonard, Robin Barish Edelstein, John J. Duffy, Bates, Meckler, Bulger & Tilson, Chicago, IL.
Momcilo Filipovic, plaintiff, Pro se, Westmont, IL.
For K&R EXPRESS SYSTEMS, defendant: Kenneth Philip Ross, Jerry Scott Menge, Robert F. Coleman & Associates, Chicago, IL.
 
Author:
The Hon. Justice Keys
 

This matter comes before the Court on Defendant's Motion for Summary Judgment, pursuant to Federal Rule of Civil Procedure 56. For the following reasons, Defendant's motion is granted.

BACKGROUND

Drawing all reasonable inferences in favor of the Plaintiff, the Court finds the following facts, for the purposes of this summary judgment motion. Plaintiff, Momcilo Filipovic, was born on July 10, 1939, in Yugoslavia. (Plaintiff's 12(N) Statement of Disputed Facts [Pl.'s 12(N)] P 1.) Mr. Filipovic immigrated to the United States in 1973, is now a citizen of the United States, and currently resides in Illinois. (Id.) In January of 1982, Mr. Filipovic applied for work with Defendant, K & R Express Systems, Inc. ("K&R"). (Pl.'s 12(N) P 4.) Mr. Filipovic was hired by K&R as a full-time dockman on January 26, 1982. (Id.) On February 27, 1982, Mr. Filipovic joined Local Union No. 710 of the International Brotherhood of Teamsters (the "Union"), and became subject to the Labor Contract and Working Agreement between the Union and K&R. (Pl.'s 12(N) P 5.) Mr. Filipovic remains an employee of K&R.

It is undisputed that Mr. Filipovic was called names and insulted by his co-workers. On the K&R loading dock, a banter of insults, rough language, and even ethnic slurs is freely exchanged between the workers, (Pl.'s 12(N) P 8), and Mr. Filipovic was not excepted from this activity. For example, Mike Sotir, also a dockman at K&R, called Mr. Filipovic a "Russian dickhead," a "stupid asshole," and a "sheep fucker." (Pl.'s 12(N) P 9.) Such comments by Mr. Sotir were made as late as January of 1997. (Deposition of Momcilo Filipovic at 60-61.) Additionally, Jim Kollett, a former working foreman at K&R, had asked Mr. Filipovic, "is [sic] all Yugoslavians as ugly as you?" (Pl.'s 12(N) P 11.) This comment was made by Mr. Kollett sometime between 1985 and 1990. (Filipovic Dep. at 58-59.) Sometime in the mid-1980's, Harry Garcia, a dockman, had called Mr. Filipovic a "crazy Yugoslavian immigrant." (Pl.'s 12(N) P 12.) Prior to 1985, George Duhen, a K&R employee, and Mr. Filipovic's landlord, told him to "go back to Yugoslavia to complain" during a landlord-tenant dispute. (Pl.'s 12(N) P 13.)

Mr. Filipovic's life at K&R was not made easier by fellow employee Edmond Desparrios. In May of 1992, *fn1 while the two were in their personal automobiles, Mr. Desparrios made gestures at Mr. Filipovic and claimed he would send him back to Yugoslavia. (Pl.'s 12(N) P 63.) Mr. Filipovic flagged down a police officer, who drove to K&R and discussed the incident with the hub manager, Jeff Epstein. (Pl.'s 12(N) P 64.) After discussing the situation with Mr. Filipovic and Mr. Desparrios, Mr. Epstein believed that the conflict was resolved, (Epstein Dep. at 163), and he continued to assign Mr. Filipovic to work in proximity to Mr. Desparrios. (Pl.'s 12(N) P 66.) Mr. Filipovic had been involved in two earlier altercations with Mr. Desparrios, as well. (Pl.'s 12(N) PP 60, 62.)

K&R supervisory personnel participated in the coarse and insulting language on the loading dock. Sometime before 1990, Jim Krow, a former supervisor of Mr. Filipovic, called him a "commie" and a "dirty commie." (Pl.'s 12(N) P 17.) Around the same time, Troy Dennison, also a supervisor, told Mr. Filipovic to "go back to the old country." (Pl.'s 12(N) P 18.) Commenting on the war in Yugoslavia, John Sperling, a K&R supervisor, stated to Mr. Filipovic that "it seems to me all Serbians are barbarians." (Pl.'s 12(N) P 19.)

According to Mr. Filipovic's version of events, which are accepted for purposes of summary judgment, K&R vice president Dan Sutton also participated in the name-calling and coarse language. In response to a January 1993, incident in which Mr. Filipovic received a written warning for improper loading of freight, Mr. Filipovic submitted a written complaint to Mr. Sutton, contending that he was not responsible for the incident. *fn2 Mr. Sutton, angered by Mr. Filipovic's letter, called him a "fucking foreigner" and said that he would make him "pay" for his complaints. (Pl.'s 12(N) P 19.)

In addition to the unpleasant treatment that Mr. Filipovic received from his co-workers and supervisors, he found several K&R management decisions to be adverse to his interests. For example, Mr. Filipovic spent approximately ninety percent of his time working "roadside," an assignment he found undesirable. (Pl.'s 12(N) P 46.) He also disliked the fact that he was assigned by Jim Krow to unload more unwieldy freight. (Pl.'s 12(N) P 47.) Further, when a trailer came into the dock with a load of spoiled sausage casings which had spilled from their containers, supervisor John Sperling ordered Mr. Filipovic to clean the rancid residue from the trailer, even though another non-Yugoslavian worker was already assigned to that trailer. (Pl.'s 12(N) P 48.) After this incident, Mr. Filipovic's co-workers teased him about the odor that emanated from his clothes and shoes. (Id.)

Beyond his dissatisfaction with his work assignments, Mr. Filipovic found that K&R overtime and vacation policies were not fairly applied. For example, in October of 1994, Mr. Filipovic was disciplined when he failed to show up for an overtime work shift. (Pl.'s 12(N) P 49.) He had signed up for the shift, but, when the list of workers scheduled for the shift was posted, Mr. Filipovic never saw it. (Id.) He received a warning letter and did not receive the overtime pay for the missed shift.

In a separate, earlier incident, a dispute arose when Mr. Filipovic was scheduled for a vacation. (Pl.'s 12(N) P 50.) On November 1, 1993, the first day of that scheduled vacation, Mr. Filipovic arrived at K&R ready to work. (Id.) However, Mr. Jeff Epstein, the hub manager, would not allow him to work; Mr. Filipovic was subsequently sent home.

Mr. Filipovic also claims that he was unfairly targeted for investigations into possible workplace misconduct because of his national origin. In 1985, he was questioned regarding some calculators that were missing from a freight shipment. (Pl.'s 12(N) PP 52-53.) A box of calculators had arrived at its destination opened and with several calculators missing. Mr. Filipovic was questioned by Mr. Epstein as well as by a private investigator hired by K&R. *fn3

An earlier confrontation with Mr. Epstein occurred in April of 1984, when Mr. Filipovic, along with fellow employee Bill Bartuch, was ordered to undergo a blood alcohol test upon suspicion that he had been drinking on his lunch break. (Pl.'s 12(N) P 55.) When Mr. Filipovic refused to take a blood test, he was immediately terminated. (Pl.'s 12(N) P 56.) However, Mr. Filipovic proceeded to Hinsdale Hospital on his own accord, where he underwent breath and urine alcohol testing. (Pl.'s 12(N) P 58.) When Mr. Filipovic's tests proved negative, he was reinstated by K&R. (Id.) After the incident, Mr. Epstein said to Mr. Filipovic, "I'll get you next time." (Id.)

Mr. Filipovic also alleges that K&R's discipline policies have been applied more harshly to him than to other workers because of his Yugoslavian heritage. In January of 1993, a trailer that Mr. Filipovic had loaded caught fire, while in transit, because the freight had shifted and come into contact with a heating element. Mr. Filipovic received a warning letter for improper freight loading. After the incident, Mr. Filipovic's co-workers taunted him with jeers that he was a "pyromaniac." (Pl.'s 12(N) P 14.) Warning letters for improper freight handling were also issued to Mr. Filipovic in April, June, and September of 1994.

Mr. Filipovic points to his termination, after a quarrel with John Sperling (a supervisor) over the use of a pallet jack, as further proof of the alleged discriminatory enforcement of K&R policies. On December 3, 1993, Mr. Filipovic was in the process of removing a pallet jack from Mr. Sperling's area. Mr. Sperling told Mr. Filipovic to leave the jack in place. (Pl.'s 12(N) P 68.) Mr. Filipovic did not obey Mr. Sperling's request and, instead, responded that he had to follow orders from his own supervisor, Pete Ostazewski, who had ordered him to retrieve the jack. (Id.) Ken Hughes, Mr. Sperling's superior, told him to fire Mr. Filipovic. (Pl.'s 12(N) P 69.) Mr. Filipovic was fired for insubordination, but was later reinstated.

Finally, Mr. Filipovic was not promoted to the position of "spotter," (Pl.'s 12(N) P 75), a position which carries more responsibility and a higher rate of pay than his position as dockman. (Pl.'s 12(N) P 74.) Mr. Filipovic has consistently asked to become a spotter since 1986. (Pl.'s 12(N) P 75.) Union work rules regulate the process of determining who will be given a spotter position. (Defendant's Statement of Material Facts as to Which There Is No Genuine Issue [Def.'s 12(M)] P 59.) When an employee expresses an interest in the position, his performance and safety records are first scrutinized. (Id.) If the applicant passes muster, he trains on his own time for the position. (Def.'s 12(M) P 64.) Bids for spotter positions are then awarded based strictly on seniority.

There is one exception to the seniority requirement. A number of "ten percenters" are trained to serve as substitutes to fill in for full time spotters. (Def.'s 12(M) P 61.) Ten percenters are the least senior ten percent of workers (Id.) The ten percenters are given the spotter training because, unlike the ninety percenters, such as Mr. Filipovic, ten percenters can be assigned by management to work any shift that K&R management needs filled. (Id.) In contrast, more senior workers are allowed to bid for the shift of their choice. (Id.)

Mr. Filipovic filed Charges of Discrimination with the Equal Employment Opportunity Commission (the "EEOC") on approximately July 18, 1993; December 27, 1994; and July 19, 1994. (Complaint P 6.) Notice of Right to Sue letters were granted to Mr. Filipovic by the EEOC for each of the three charges. (Second Am. Comp. P 7.) Mr. Filipovic brought this action in federal court on November 21, 1995.

In Count I of his Complaint, Mr. Filipovic enumerates the previously described litany of objectionable conduct on the part of K&R management and staff. (Complaint PP 11-27.) Mr. Filipovic further alleges that these actions were motivated by animus against his national origin, or in retaliation for his seeking redress for these alleged acts of discrimination. (Complaint PP 28-29.) Count II realleges the same conduct on the part of K&R management and staff and alleges that the conduct created a hostile work environment. (Complaint PP 31-34.) In Count III, Mr. Filipovic charges that he was denied the "spotter" position based on his age. Count IV realleges the same actions by K&R personnel which supports the prior counts, and alleges that this conduct was extreme and outrageous (presumably to support an Intentional Infliction of Emotional Distress claim under Illinois law).

SUMMARY JUDGMENT STANDARD

Under the Federal Rules of Civil Procedure, summary judgment is appropriate when "there is no genuine issue as to any material fact, and . . . the moving party is entitled to a judgment as a matter of law." FED. R. CIV. P. 56(c). The initial burden is on the moving party to identify "those portions of 'the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any,' which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986) (citing FED. R. CIV. P. 56(c)). Summary judgment must be granted, unless there is sufficient evidence for a jury verdict in favor of the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986); County of Vernon v. United States, 933 F.2d 532, 534 (7th Cir. 1991). In deciding a motion for summary judgment, the court must view all the facts in the light most favorable to the non-moving party. Anderson, 477 U.S. at 255.

Mr. Filipovic may not rely only on the allegations in his pleadings. Waldridge v. American Hoechst Corp., 24 F.3d 918, 920 (7th Cir. 1994). He must present sufficient evidence to show the existence of each element of his case, on which he will bear the burden at trial. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 585-86, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986); Serfecz v. Jewel Food Stores, 67 F.3d 591, 596 (7th Cir. 1995), cert. denied, 134 L. Ed. 2d 189, 116 S. Ct. 1042 (1996).

DISCUSSION

To support his claims of national origin and age discrimination, retaliation, and intentional infliction of emotional distress, Mr. Filipovic identifies a string of incidents from the mid-1980's through the time of his deposition (February 3, 1997). The Court must first determine which of the workplace incidents may be properly considered in evaluating Mr. Filipovic's claims of discrimination, and which are time-barred by Title VII of the Civil Rights Act of 1964 ("Title VII"). 42 U.S.C. P 2000e-5(e). Once the incidents which may be properly considered have been identified, each of the counts in Mr. Filipovic's Complaint will be evaluated individually.

A. STATUTE OF LIMITATIONS

In Illinois, a charge under Title VII must be brought within three hundred days of the alleged discriminatory act. 42 U.S.C. P 2000e-5(e); Lorance v. AT&T Techs., Inc., 827 F.2d 163 (7th Cir. 1987), aff'd , 490 U.S. 900, 104 L. Ed. 2d 961, 109 S. Ct. 2261 (1989). Thus, Mr. Filipovic's claims which occurred prior to September 21, 1992, three hundred days before his July 18, 1993 EEOC filing, would be time-barred under 42 U.S.C. P 2000e-5(e).

1. Time-Barred Incidents

Many of the incidents identified by Mr. Filipovic to support his claims occurred prior to September 21, 1992. Specifically, a claim based on the harassment and unfavorable treatment that Mr. Filipovic received from his supervisor, Jim Krow, prior to 1990 would be time-barred. Moreover, the insults and poor treatment that Mr. Filipovic endured from co-workers Jim Kollett, Harry Garcia, and George Duhen all occurred outside the statutory period. Additionally, the confrontations with Ed Desparrios also occurred outside the statutory period. Likewise, the 1984 incident, in which Mr. Filipovic was required to take a blood alcohol test on suspicion of drinking, as well as the 1985 incident, where he was accused of calculator theft, fall outside the limitations period established by 42 U.S.C. 2000e-5(e).

2. Continuing Violation Doctrine

However, Mr. Filipovic could escape the harsh effects of the time-bar, under 42 U.S.C. 2000e-5(e), if he could show that all of the incidents were actually part of one continuing violation. If the otherwise time-barred acts were so closely related to incidents within the statutory period as to constitute "one ongoing violation," relief for the time-barred acts could be allowed. Koelsch v. Beltone Elecs. Corp., 46 F.3d 705, 707 (7th Cir. 1995). This "continuing violation" doctrine may only be used to include otherwise time-barred incidents if "it would have been unreasonable to expect the plaintiff to sue before the statute ran on that conduct, as in a case in which the conduct could constitute, or be recognized, as actionable harassment only in the light of events that occurred later, within the period of the statute of limitations." Galloway v. General Motors Serv. Parts Operations, 78 F.3d 1164, 1167 (7th Cir. 1996). However, if Mr. Filipovic "knew or with the exercise of reasonable diligence would have known after each act that it was discriminatory and had harmed him, he may not sit back and accumulate all the discriminatory acts and sue on all within the statutory period applicable to the last one." Moskowitz v. Trustees of Purdue Univ., 5 F.3d 279, 282 (7th Cir. 1993).

a. Continuing Violation Doctrine and Harassment

A large portion of the pre-September 21, 1992 conduct is comprised of the harassment that Mr. Filipovic received at the hands of Messrs. Krow, Koilett, Garcia, Desparrios, and Duhen. As a general matter, the continuing violation doctrine is not readily applicable to name-calling and harassment, the type of conduct attributed to these men, because the discriminatory nature of such conduct should be immediately apparent to the plaintiff. See Dasgupta v. University of Wisconsin Bd. of Regents, 121 F.3d 1138, 1139 (7th Cir. 1997). The acts of the men in question were anything but subtle. Further, the passage of time has in no way assisted Mr. Filipovic in demonstrating that these acts constituted discrimination.

Thus, whether the name-calling and harassment by these men are part f a continuing violation presents a Hobson's choice for Mr. Filipovic. If the otherwise time-barred incidents were part of a continuing violation, he must concede that the conduct could not be recognized as, or did not constitute, an actionable claim at the time it occurred. This would weaken Mr. Filipovic's claim that he ever endured a hostile work environment, since the most pervasive period of harassment appears to have occurred during the tenure of Mssrs. Krow, Kollett, Garcia, Desparrios, and Duhen.

The other option in Mr. Filipovic's Hobson's choice is that the pre-September 1, 1992 incidents were sufficient to constitute a hostile work environment at he time they occurred. Yet, if the incidents did constitute harassment, then hey are time-barred. In other words, to the extent that Mr. Filipovic has a ostile work environment claim, he had one prior to the statutory period limit of September 21, 1992. Moreover, Mr. Filipovic is attempting to do exactly what the Seventh Circuit admonished against in Moskowitz: he is attempting to squeeze more than a decade's worth of incidents into the three hundred day window allowed by 42 U.S.C. 2000e-5(e). Given that the pervasiveness of the acts is a critical element of a hostile work environment claim, this attempt cannot be allowed to succeed. Therefore, recovery based upon the acts of Messrs. Krow, Kollett, Garcia, Duhen, and Desparrios is unavailable to Mr. Filipovic.

b. Continuing Violation Doctrine and Disparate Treatment by K&R Management.

In contrast to the pre-September 21, 1992, harassment and name-calling incidents, the accusations of calculator theft and lunchtime drinking present a somewhat different issue because these acts were not immediately identifiable as acts of discrimination. Because Mr. Filipovic would not necessarily be expected to discern any discriminatory motivation behind these actions, they more closely resemble the covert discrimination normally required to establish a continuing violation. See Galloway, 78 F.3d at 1167. Since the potentially discriminatory motivation would not be as immediately apparent, an assessment of whether the two instances are part of a continuing violation is a bit more complicated. In Selan v. Kiley, three factors were identified to assist in distinguishing between a continuing violation and a string of incidents which are "merely discrete, isolated, and completed acts which must be regarded as individual violations." 969 F.2d 560, 565 (7th Cir. 1992) (quoting Berry v. Board of Supervisors, 715 F.2d 971, 981 (5th Cir. 1983)). The Selan factors include: (1) whether the acts involve the same subject matter; (2) the frequency of the discriminatory acts; and (3) the degree of permanence of the otherwise time-barred acts. Selan, 969 F.2d at 565.

In reference to the first factor identified in Selan, requiring Mr. Filipovic to take a blood test and accusing him of calculator theft both involve allegations of overzealous enforcement of company disciplinary policies against Mr. Filipovic based on his national origin. This is the same general subject matter of Mr. Filipovic's non-time-barred complaints -- that he was unjustly disciplined or warned for insubordination, improper loading of freight, and wasting company time. The similarity of the subject matter of otherwise time-barred acts to acts within the statutory period weighs in favor of finding a continuing violation. However, the second Selan factor, frequency, militates strongly against finding that the blood alcohol testing and calculator theft incidents were part of a continuing violation. After the 1985 calculator theft accusation, the next instance where Mr. Filipovic provided any evidence of overzealous rule enforcement was on December 3, 1993, when he was terminated by Mr. Sperling. This incident occurred a full eight years after the calculator theft incident, which does not indicate the frequency of a continuing violation. See id. at 567 (finding that a two year span between adverse employment actions weighed heavily against finding a continuing violation).

Likewise, the third Selan factor, the permanent character of the discriminatory act, weighs against finding a continuing violation encompassing the accusations of drinking and theft. The alleged discriminatory acts were discrete, completed acts, the impact and consequences of which were immediately known to Mr. Filipovic. Further, the only evidence of national origin animus on the part of Mr. Epstein was the alleged "Russian thief" comment from 1985 -- which the Court has already declined to consider. See supra n.3.

Thus, Mr. Filipovic was aware of the facts which support his discrimination claim for many years before he filed charges. Unless the continuing violation exception is to swallow the statutory limitation provided by 42 U.S.C. SEC. 2000e-5(e), Mr. Filipovic's claims of discriminatory accusations of theft and lunchtime drinking must be found time-barred.

B. SUBSTANTIVE CLAIMS

Having determined that only incidents that occurred on or after September 21, 1992, will be considered, the substance of Mr. Filipovic's claims can now be evaluated. As previously discussed, Mr. Filipovic's Complaint contains four counts. In Count I, Mr. Filipovic alleged that he was the victim of intentional discrimination because of his Yugoslavian national origin, and that he was retaliated against for seeking redress for these complaints. (Complaint PP 28-29.) Count II seeks relief under a hostile work environment theory. (Complaint PP 31-34.) Mr. Filipovic charges in Count III that he was denied the "spotter" position based on his age. Finally, Count IV alleges that Mr. Filipovic was the victim of intentional infliction of emotional distress.

1. Count I - Disparate Treatment by K&R Management Based on National Origin

In essence, Count I charges intentional discrimination by K&R on the basis of Mr. Filipovic's Yugoslavian national origin, or in retaliation for his claims for relief from such discrimination. Title VII makes it unlawful for an employer "to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's . . . national origin . . . ." 42 U.S.C. P 2000e-2(a).

To withstand a motion for summary judgment, a Title VII plaintiff must make a showing of discriminatory intent on the part of the employer. Troupe v. May Dep't Stores Co., 20 F.3d 734, 736 (7th Cir. 1994). There are essentially two ways that a Title VII plaintiff may demonstrate discriminatory intent sufficiently to survive summary judgment. First, the plaintiff may produce direct evidence of discriminatory intent on the part of the employer. Id. Second, in the absence of direct evidence of discriminatory motive, a plaintiff may create an inference of discriminatory intent by employing the burden-shifting framework established in McDonnell Douglas Corp. v. Green. *fn4 411 U.S. 792, 802, 36 L. Ed. 2d 668, 93 S. Ct. 1817 (1973); Hong v. Children's Mem'l Hosp., 993 F.2d 1257, 1261 (7th Cir. 1993), cert. denied, 511 U.S. 1005, 128 L. Ed. 2d 48, 114 S. Ct. 1372 (1994). Similarly, Mr. Filipovic can also utilize the McDonnell Douglas burden shifting analysis to defeat summary judgment in his retaliation claims. Essex v. United Parcel Serv., 111 F.3d 1304, 1308 (7th Cir. 1997).

The specific adverse management actions which are not time-barred, and which will, therefore, be considered in Mr. Filipovic's disparate treatment claim include: (1) the warning letter he received for the January 1993, truck fire; (2) the warning letters issued to him for mishandling of freight; (3) the warning letter he received for misuse of company time; (4) the December 3, 1993 termination by Mr. Sperling, for insubordination; (5) denial of overtime; and (6) the denial of his request to change his vacation schedule.

a. Direct Evidence of Discrimination

Discriminatory comments serve as direct evidence of discrimination only where they are "contemporaneous with the discharge or causally related to the discharge decision making process." Geier v. Medtronic, Inc., 99 F.3d 238, 242 (7th Cir. 1996). Direct evidence must "prove the particular fact in question without reliance on inference or presumption." Plair v. E. J. Brach & Sons, Inc., 105 F.3d 343, 347 (7th Cir. 1997). As a threshold requirement, the discriminatory remarks must have been made by the individual with decision making authority for the adverse employment action. See McCarthy v. Kemper Life Ins. Cos., 924 F.2d 683, 687 (7th Cir. 1991). Further, "evidence of a supervisor's occasional or sporadic use of a slur directed at any employee's race, ethnicity, or national origin is generally not enough to support a claim under Title VII." Hong, 993 F.2d at 1266. Only two K&R managers were alleged both to have made discriminatory remarks and also to have been responsible for an employment decision adverse to Mr. Filipovic: Messrs. Epstein and Sperling.

i. Direct Evidence of Discrimination by Mr. Epstein

Turning first to Mr. Epstein, it is alleged that he was responsible for each of the adverse employment actions that Mr. Filipovic sustained except for the December 3, 1993 termination. (Pl.'s 12 (N) PP 25-34.) However, Mr. Filipovic provides no direct evidence of anti-Yugoslavian animus on the part of Mr. Epstein. The sole national origin-based comment which Mr. Filipovic ascribes to Mr. Epstein was the 1985 remark that Mr. Filipovic was a "Russian thief." This comment has already been discussed and discredited (for lack of supporting evidence) by the Court, however, even if he had provided supporting evidence it still would not help here. Given the seven year delay between this alleged 1985 comment and the post-September 1992 adverse employment decisions which are properly before the Court, Mr. Filipovic could not show the required relationship between the alleged comment and any of the adverse employment actions. Moreover, one discriminatory comment during an employment relationship spanning more than a decade would certainly qualify as "occasional or sporadic." Hong, 993 F.2d at 1266. Thus, the alleged "Russian thief" comment would be simply too remote and isolated to constitute direct evidence of discrimination, even if the Court were to consider it.

It is true that Mr. Filipovic provided other evidence that perhaps Mr. Epstein did not like him, or that he even wished to fire him. (Pl.'s 12(N) P 41-43; Sperling Dep. at 30-31.) However, there is no evidence that Mr. Epstein's dislike of Mr. Filipovic was motivated by anti-Yugoslavian animus. In sum, if Mr. Filipovic is to survive summary judgment for the incidents which depend on discriminatory or retaliatory intent, on the part of Mr. Epstein, he must utilize the McDonnell Douglas burden shifting method.

ii. Direct Evidence of Discrimination by Mr. Sperling (or Mr. Hughes)

Likewise, Mr. Filipovic has not produced sufficient direct evidence of discriminatory intent to survive summary judgment with respect to his December 3, 1993, termination. At some point prior to the December 3, 1993 incident (there was no date provided), Mr. Sperling questioned Mr. Filipovic about the conflict in the former Yugoslavia. (Pl.'s 12(N) P 19.) Mr. Sperling, after confirming that Mr. Filipovic was Serbian, expressed his opinion that "it seems to me all Serbians are barbarians." (Id.) On December 3, 1993, Mr. Sperling became upset when Mr. Filipovic removed a hand jack from Mr. Sperling's work area in opposition to Mr. Sperling's direct order. (Pl.'s 12(N) P 68.) In response to Mr. Filipovic's failure to comply with his order to leave the hand jack in place, Mr. Sperling exclaimed "fuck you, dirty foreigner." (Filipovic Dep. at 84.) Ken Hughes later told Mr. Sperling to fire Mr. Filipovic; he was fired for insubordination, and was eventually reinstated.

The comment about Serbians being barbarians is too tenuously related since there is no date attached to it. However, even if that remark was taken along with the December 3, 1993 comment, the two fall under the "occasional or sporadic" category. More importantly, since it is Mr. Filipovic's position that Mr. Sperling's supervisor, Mr. Hughes, made the termination decision, (Pl.'s 12(N) P 69), he must demonstrate that Mr. Hughes discriminated against him based on his national origin. Mr. Filipovic has produced no evidence of national origin discrimination on the part of Mr. Hughes. Thus, since Mr. Hughes made the decision to terminate Mr. Filipovic, Mr. Sperling's discriminatory comment is immaterial. Any discriminatory intent on the part of Mr. Sperling could be imputed to Mr. Hughes only if Mr. Sperling, "by concealing relevant information from the decision making employee or feeding false information to him, [was] able to influence the decision." Wallace v. SMC Pneumatics, Inc., 103 F.3d 1394, 1400 (7th Cir. 1997).

There is no evidence that Mr. Sperling fed false information to Mr. Hughes. Nor is there any evidence that Mr. Hughes' decision to terminate Mr. Filipovic, in response to the December 3, 1993 incident, was discriminatory. Thus, the allegation that the December 3, 1993 discharge was discriminatory must fail.

b. McDonnell Douglas Burden Shifting

Having failed to provide direct evidence of discrimination for any of the adverse employment decisions made by Mr. Epstein, Mr. Filipovic must turn to the McDonnell Douglas burden shifting analysis to establish discriminatory intent. *fn5 A prima facie case of discrimination in the context of an adverse employment action can be established by showing that the plaintiff: (1) is a member of a protected class; (2) was meeting the legitimate expectations of the employer; (3) suffered an adverse employment action; and (4) the employer treated similarly situated persons not in the protected class more favorably. Iovin v. Northwestern Mem'l Hosp., 916 F. Supp. 1395, 1405 (N.D. Ill. 1996). If a plaintiff establishes a prima facie case, "the burden must shift to the employer to articulate some legitimate, nondiscriminatory reason for the unfavorable action." McDonnell Douglas, 411 U.S. at 802. To meet its burden, the defendant must then produce evidence "which, taken as true, would permit the conclusion that there was a nondiscriminatory reason for the adverse action." St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 509, 125 L. Ed. 2d 407, 113 S. Ct. 2742 (1993). If the defendant is able to provide a legitimate, nondiscriminatory reason for the unfavorable action, the presumption drops out of the case and the plaintiff must then come forward with sufficient evidence to show that the legitimate reasons given by the defendant are not credible or are mere pretext for discrimination. McDonnell Douglas, 411 U.S. at 804. Mr. Filipovic can demonstrate that reasons given by K&R are pretextual in one of three ways: "(1) the employer's explanation had no basis in fact; (2) the explanation was not the "real" reason; or (3) the reason stated was insufficient to warrant the adverse employment action." Johnson v. City of Fort Wayne, Ind., 91 F.3d 922, 931 (7th Cir. 1996). In demonstrating pretext, Mr. Filipovic must "focus on the specific reasons advanced by the defendant." Id.

Mr. Filipovic has identified a list of adverse decisions by Mr. Epstein which he alleges were motivated by anti-Yugoslavian animus. Application of the McDonnell Douglas burden shifting analysis to each of these incidents reveals that Mr. Filipovic has failed to create even a prima facie inference of discriminatory intent on the part of Mr. Epstein.

i. The Warning Letter for the Truck Fire *fn6

In January of 1993, Mr. Filipovic was issued a written warning for improperly loading freight when a truck trailer which he had loaded caught fire in transit because the freight shifted and came into contact with a heater. (Def.'s 12(M) P 31.) Simply put, Mr. Filipovic cannot establish a prima facie case of national origin discrimination with respect to this incident. First, he has produced no evidence that he was meeting K&R's legitimate expectations in his loading of the truck. Second, he has not identified any non-Yugoslavian individuals who have committed similar errors that have been treated less harshly. In fact, the foreman responsible for the fire-damaged shipment, Dave Davidson, was given the option to resign or face termination. (Def.'s 12(M) P 32.) Therefore, the truck fire incident does not create a genuine issue of material fact with respect to Mr. Filipovic's intentional discrimination claims.

ii. The Warning Letters for Improper Handling of Freight

Mr. Filipovic alleges in his Complaint that he was disciplined based on false claims of improper handling of freight in April of 1995, as well as June and September of 1994. (Complaint P 24.) However, Mr. Filipovic has produced no evidence of the circumstances surrounding these warning letters. Without more detail pertaining to these incidents, Mr. Filipovic cannot establish that he met the legitimate freight handling expectations of K&R, nor can he demonstrate that similarly situated non-Yugoslavians were treated differently based on similar violations. Further, the Court is not entirely convinced that a warning letter alone is sufficient to constitute an adverse employment action for the purposes of a Title VII claim. As such, Mr. Filipovic cannot establish a prima facie case.

iii. The Warning Letter for Misuse of Company Time

Mr. Filipovic and fellow employee Kevin Nykiel were issued warning letters, on September 22, 1994, for engaging in a five minute conversation. (Def.'s 12(M) P 35.) He concedes that "[a] waste of five minutes is not tolerable and considered very abusive." (Def. 12(M) P 34; Pl.'s Resp. to Def.'s 12(M) P 34.) By conceding that his actions violated a fundamental K&R policy, Mr. Filipovic has essentially conceded that, at the time of the warning letter, he was not meeting the legitimate expectations of K&R. Further, he has not identified non-Yugoslavians who have committed similar violations without receiving a warning letter. Mr. Nykiel, presumably a non-Yugoslavian, received an identical warning letter. In sum, Mr. Filipovic has failed to establish a prima facie case of national origin discrimination with respect to this incident. Therefore, this incident does not create an issue of material fact which would prevent K&R from being entitled to judgment as a matter of law.

iv. Denial of Overtime

Mr. Filipovic has failed to establish a prima facie case of discrimination based on K&R's denial of overtime to him. The first allegedly discriminatory denial of overtime identified by Mr. Filipovic occurred in October of 1993. (Complaint P 19.) On this occasion, according to Union seniority rules, he should have been offered overtime, but was somehow passed over. After Mr. Filipovic prevailed at a grievance hearing, K&R compensated him for the lost wages. Not only has he failed to identify how he faced an adverse action when he was fully compensated for the lost time, he has also failed to produce any evidence that non-Yugoslavians have been exempt from such errors. In fact, Mr. Filipovic has conceded that errors do occur in assignment of overtime and that certain non-Yugoslavian dockman have been victims of such errors. (Def.'s 12(M) P 78.)

Mr. Filipovic also points to an October 1994 incident in which he had signed up to request an overtime shift, but failed to work the shift because he did not see the listing of employees scheduled to work. (Pl.'s 12(N) P 49.) Mr. Filipovic appears to believe that someone, presumably acting on the basis of anti-Yugoslavian feelings, removed the list from the bulletin board so that only he would not see it. (Pl.'s 12(N) [*33] P 49; Filipovic Dep. at 170.) However, having failed to provide any evidence of who removed the list, when it was removed, or why, discriminatory intent on the part of K&R cannot be inferred. Further, it seems fair to question why, if Mr. Filipovic so desired to work the shift in question, he did not check with a supervisor regarding the roster of workers scheduled for the shift, given that he knew that he had not seen the list.

v. Denial of Vacation Schedule Change

Mr. Filipovic was scheduled for vacation to begin on November 1, 1993. (Pl.'s

12(N) P 50.) On the day his vacation was to begin, he changed his mind and

decided that he wanted to work during his scheduled vacation. (Id.) However, Mr.

Epstein did not allow Mr. Filipovic to work and, instead, sent him home. (Id.)

While it may be true that others have been allowed to alter their vacation schedules, Mr. Filipovic has failed to show that those individuals were indeed similarly situated. Specifically, Mr. Filipovic had already cashed his vacation pay check. (Def.'s 12(M) P 81.) Mr. Epstein objected to Mr. Filipovic receiving both his regular paycheck and his vacation check for the same week. (Def.'s 12(M) P 80.) Mr. Filipovic has identified no non-Yugoslavian individual who was allowed to receive both a regular paycheck and a vacation check for the same week. Thus, he has failed to show that similarly situated individuals not of his protected class were treated more favorably, and has failed to establish a prima facie case of discriminatory intent with respect to this incident.

c. Retaliation

Mr. Filipovic can survive summary judgment with respect to his retaliation claims either by direct evidence of retaliation or through the McDonnell Douglas burden shifting analysis. Essex v. United Parcel Serv., 111 F.3d 1304, 1308 (7th Cir. 1997). Lacking direct evidence of retaliatory intent, Mr. Filipovic must rely on McDonnell Douglas. To establish a prima facie case of retaliation, Mr. Filipovic must establish that: "1) [he] engaged in statutorily protected activity; 2) he suffered an adverse action; and 3) there is causal link between the protected activity and the adverse action." Id. at 1309.

With respect to the first element, Mr. Filipovic engaged in protected activity when he filed his first EEOC claim, on or about July 18, 1993. *fn7 Hunt-Golliday v. Metropolitan Water Reclamation Dist., 104 F.3d 1004, 1014 (7th Cir. 1996). Regarding the third element, "a plaintiff may establish such a link through evidence that the [adverse employment action] took place on the heels of protected activity." Dey v. Colt Constr. & Dev. Co., 28 F.3d 1446, 1458 (7th Cir. 1994). A causal link is typically found when the adverse employment action is taken within a few days to a week of the plaintiff's engaging in protected conduct. McClendon v. Indiana Sugars, Inc., 108 F.3d 789, 797 (7th Cir. 1997). In contrast, a "substantial time lapse between the two events is counter-evidence of any causal connection." Johnson v. University of Wisconsin-Eau Claire, 70 F.3d 469, 480 (7th Cir. 1995).

In the present case, Mr. Filipovic has not provided evidence of any adverse employment actions following "on the heels of" his first EEOC claim. The closest discrete employment action after Mr. Filipovic's initial EEOC filing was the December 3, 1993, termination incident which occurred over four months after the filing. This, alone, is insufficient to establish a causal link. Moreover, Mr. Filipovic does not point to any specific evidence on which his retaliation theory is based. Without some evidence of a causal link, particularly where Mr. Filipovic has alleged mistreatment beginning well before his EEOC claim was filed, Mr. Filipovic cannot establish a prima facie case of retaliation. Thus, his retaliation claim must fail.

2. Count II - Hostile Work Environment Based on National Origin

In Count II, Mr. Filipovic alleges that discriminatory acts on the part of K&R management and staff created a hostile work environment. Title VII "strike[s] at the entire spectrum of disparate treatment of men and women in employment," which includes requiring people to work in a discriminatorily hostile or abusive environment. Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 64, 91 L. Ed. 2d 49, 106 S. Ct. 2399 (1986). The hostile work environment doctrine defined in the context of sexual harassment in Meritor applies equally to claims of harassment based on race, religion, or national origin. Harris v. Forklift Sys., Inc., 510 U.S. 17, 22, 126 L. Ed. 2d 295, 114 S. Ct. 367 (1993).

a. Incidents of Harassment

Based on the statute of limitations provided by 42 U.S.C. SEC. 2000e(5)(e), several incidents of alleged harassment were eliminated from consideration. See supra Part A. Further, many of the actions of K&R supervisory personnel which Mr. Filipovic found adverse were determined to be non-discriminatory in the prior analysis of Count I. Nevertheless, some of Mr. Filipovic's allegations remain for consideration with respect to his hostile work environment claim. For example, at least some of the name-calling by co-worker Mike Sotir occurred within the statutory period. Likewise, Mr. Sperling's comment that all Serbians are barbarians will not be deemed time-barred (despite the fact that no date was provided). Neither is the December 3, 1993 incident in which Mr. Sperling said to Mr. Filipovic, "fuck you, dirty foreigner." Presumably, the incident in which Mr. Sperling instructed Mr. Filipovic to clean out a trailer containing spoiled sausage casings fell within the statutory period. Also within the statutory period is the incident in which K&R Vice President Dan Sutton called Mr. Filipovic a "fucking foreigner" and told him he would "make him pay."

b. Hostile Work Environment Standard

To establish a hostile work environment claim under Title VII, Mr. Filipovic must demonstrate that K&R's discriminatory conduct was "sufficiently severe or pervasive to alter the conditions of employment and create an abusive working environment." Meritor, 477 U.S. at 67. Further, he must show that he endured the hostile work environment "because of" his protected class status. Doe v. City of Belleville, Ill., 119 F.3d 563, 569 (1997), petition for cert. filed, 66 U.S.L.W. 3308 (Oct. 15, 1997)(No. 97-669). Thus, Mr. Filipovic must clear two hurdles to demonstrate that he endured a hostile work environment under Title VII: (1) he must show that the harassment he endured was of sufficient severity or pervasiveness; and (2) he must show causation (i.e. that he suffered a hostile environment "because of" his Yugoslavian national origin). *fn8 These issues will be dealt with in reverse order.

i. Causation

Mr. Filipovic must establish that he was harassed "because of" his Yugoslavian national origin. For the Doe majority, the motivation of the harasser was not dispositive on this issue; the more important question was whether the victim's protected class status had become "inextricably intertwined with the harassment." 119 F.3d at 578. Nonetheless, K&R argues that discriminatory motivation is of great importance here; its position is that, since rough language and name-calling, including ethnic insults, permeated the loading dock, Mr. Filipovic was not singled out for harassment because of his national origin. K&R relies on Daniels v. Essex Group, Inc., which provides that a court may consider: the nature of the alleged harassment, the background and experience of the plaintiff, [his] coworkers, and supervisors, the totality of the physical environment of the plaintiff's work area, the lexicon of obscenity that pervaded the environment of the workplace both before and after the plaintiff's introduction into its environs, coupled with the reasonable expectation of the plaintiff upon voluntarily entering that environment. 937 F.2d 1264, 1274 (7th Cir. 1991)(quoting Brooms v. Regal Tube Co., 881 F.2d 412, 419 (7th Cir. 1989)).

The Daniels criteria came from Brooms, a sexual harassment case. Sexual harassment cases often require the fact-finder to distinguish between discriminatory conduct and permissible vulgarity. An obscene remark or joke could be non-discriminatory in one environment, yet the identical remark could be discriminatory in another. The "lexicon of obscenities that pervaded the workplace" can assist in determining whether the obscene comments were directed at one employee in a gender-based and harassing manner, or were simply part of more diffuse and permissible "shop talk."

However, most racial or national origin discrimination cases do not contain this same type of factual difficulty (and, therefore, do not necessarily lend themselves to, or require, analysis of the Brooms factors); the discriminatory nature of ethnic slurs is usually apparent on their face, which is not always the case with sexual comments. *fn9 Furthermore, the fact that a work environment is permeated by ethnic slurs cannot insulate an employer from responsibility for future discriminatory harassment.

The absurdity of allowing otherwise prohibited workplace harassment merely because it is equally distributed is illustrated by the "equal opportunity harasser." See Doe, 119 F.3d at 579-80. Such a policy would legitimize a harasser who selects an epithet or symbol for each employee which is calculated to be uniquely hurtful to that employee. For example, a swastika could be painted on the locker of a Jewish employee, while an African-American employee could be threatened with lynching. Id. In this scenario, the harasser could likely immunize himself by ensuring that his victims were selected randomly or that he achieved universal coverage.

In sum, whether or not Mr. Filipovic was singled out because of his national origin, and whether or not his workplace was permeated with ethnic insults, he can still establish that he was harassed "because of" his national origin if the content of the name-calling demonstrates a sufficient nexus with his national origin.

Turning first to Mr. Sperling's comment, "it seems to me all Serbians are Barbarians", it appears this is sufficiently connected to Mr. Filipovic's national origin to provide some support for a Title VII claim. Mr. Sperling's remark, "fuck you, dirty foreigner," is at least somewhat connected to Mr. Filipovic's national origin, since a foreigner is obviously someone with a national origin other than the United States. For the same reason, Mr. Sutton's act of calling Mr. Filipovic a "fucking foreigner" has some relationship to Mr. Filipovic's non-U.S. national origin, and can be used to support a Title VII claim.

Likewise, Mr. Sotir's statement that Mr. Filipovic is a "Russian dickhead" evinces an (unsuccessful) attempt by Mr. Sotir to link his insult to Mr. Filipovic's country of origin. In contrast, Mr. Sotir's remarks that Mr. Filipovic was a "stupid asshole" and a "sheep fucker" do not implicate Mr. Filipovic's Serbian or Yugoslavian heritage. Since Title VII serves a limited role and was not "designed to purge the workplace of vulgarity," the later of Mr. Sotir's comments provide no support for Mr. Filipovic's Title VII claim. Gleason v. Mesirow Fin., Inc., 118 F.3d 1134, 1144 (7th Cir. 1997). *fn10

ii. Severity and Pervasiveness

In assessing whether a workplace is hostile, the Court considers the totality of the circumstances which "may include the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance." Harris v. Forklift Sys., Inc., 510 U.S. 17, 23, 126 L. Ed. 2d 295, 114 S. Ct. 367 (1993).

Messrs. Sutton, Sperling, and Sotir were responsible for a total of four national origin related comments between them. This set of four comments, spread out over more than a year, are insufficient to constitute a hostile work environment. The names that Mr. Filipovic endured were relatively mild compared to the emotionally charged epithets that can be lodged against other racial, ethnic, and religious groups, and barely exhibit the required nexus to his national origin to even be considered in a Title VII claim.*fn11 Moreover, the national origin-related comments were few in number and were not physically threatening. Thus, the four comments are insufficient to constitute a hostile work environment under Title VII.

3. Count III - Age Discrimination

In Count III, Mr. Filipovic alleges that he was denied a promotion to the position of "spotter" based on his age, in violation of the Age Discrimination in Employment Act ("ADEA"). 29 U.S.C. SEC. 621 et. seq. (1985). Like a Title VII plaintiff, in the absence of direct evidence of discriminatory intent, an ADEA plaintiff may utilize the McDonnell Douglas burden shifting method of surviving summary judgment. O'Connor v. DePaul Univ., 123 F.3d 665, 669 (7th Cir. 1997). Mr. Filipovic has produced no direct evidence of discrimination and must, therefore, rely on circumstantial evidence. Mr. Filipovic's birth date of July 10, 1939, places him within the ADEA protected class, at all relevant times. The testimony of Filipovic's co-worker, David White, provides at least a modicum of support for the notion that Mr. Filipovic was qualified for the spotter position, as required to establish the second prima facie element. (White Dep. at 40.) The lack of his desired promotion to spotter constitutes an adverse employment action. Regarding the final prima facie element, Mr. Filipovic provided no evidence that similarly situated individuals outside the protected class were treated more favorably. However, K&R has identified six individuals who have been trained for the spotter position who are under the age of forty: Karl Enzenbacher, Tom Edmonds, Ed Desparrios, Bob O'Brien, Derek Tate, and Mike Weigand. (Def.'s 12(M) PP 62, 66.)

Even if Mr. Filipovic has established a prima facie case through K&R's evidence, he has not countered the legitimate reasons for the disparate treatment proffered by K&R. Mr. Filipovic admits that promotion to the spotter position is determined by Union work rules. (Pl.'s Resp. to Def.'s 12(M) P 59.) In order to become a spotter, a dockman must first express an interest in the spotter position. (Pl.'s Resp. to Def.'s 12(M) P 59.) Next, he must pass a review of his performance and safety record. (Id.) After the employee has been trained, spotter positions are awarded strictly on seniority. (Id.)

Of the four persons trained as spotters who are not above Mr. Filipovic in Union seniority, Messrs. Enzenbacher, Edmonds, Desparrios, and O'Brien, only Mr. Enzenbacher is not currently a ten percenter. (Def.'s 12(M) P 62.) However, Mr. Enzenbacher received spotter training while he was still a ten percenter. (Id.) Mr. Filipovic has provided no evidence that K&R's explanation, that these individuals were trained as spotters because they were ten percenters at the time, was pretextual.

Of the permanent (ninety percenter) spotters, only Mr. Tate and Mr. Weigand are under forty years of age. (Def.'s 12(M) P 66.) However, both men are higher than Mr. Filipovic in Union seniority. (Def.'s 12(M) P 62.) Mr. Filipovic has provided no evidence that age discrimination, rather than Union seniority, was the basis for Messrs. Tate and Weigand being granted their spotter positions. Having failed to demonstrate the pretextual nature of the legitimate grounds of disparate treatment offered by K&R, Mr. Filipovic cannot survive summary judgment with respect to his ADEA claim.

4. Count IV - Intentional Infliction of Emotional Distress

In Count IV of his Complaint, Mr. Filipovic alleges that K&R's conduct was extreme and outrageous, apparently in support of an intentional infliction of emotional distress ("IIED") claim under Illinois law. However, Mr. Filipovic's IIED claim is preempted by the Illinois Human Rights Act ("IHRA"), 775 Ill. Comp. Stat. 5/8-111(C) (1996). Jansen, 123 F.3d at 493 (IHRA preempts sexual harassment claim); Daulo v. Commonwealth Edison, 938 F. Supp. 1388, 1405 (N.D. Ill. 1996) (IHRA preempts national origin discrimination claim); Geise v. Phoenix Co. of Chicago, Inc., 159 Ill. 2d 507, 639 N.E.2d 1273, 203 Ill. Dec. 454 (Ill. 1994). A common law claim is preempted where it relies on identical facts as the discrimination claim. Jansen, 123 F.3d at 493. Since Mr. Filipovic's IIED claim simply realleges the same conduct on the part of K&R that was used to support the discrimination claims, (Complaint P 42), Mr. Filipovic's IIED claim is preempted by the IHRA.

In addition, Mr. Filipovic's IIED claim is preempted by the Illinois Workers Compensation Act, which provides, in pertinent part:

No common law or statutory right to recover damages from the employer ... for injury or death sustained by any employee while engaged in the line of his duty as such employee, other than the compensation herein provided, is available to any employee who is covered by the provisions of this Act.

820 Ill. Com. Stat. 305/5(a) (1996).

Mr. Filipovic has provided no support for finding an exception to the Illinois Workers Compensation Act's exclusive remedy provision in this case. Having found that Mr. Filipovic's IIED claim is preempted, K&R is entitled to judgment as a matter of law with respect to Count IV.

CONCLUSION

There are no genuine issues of material fact as to Plaintiff's claims of national origin discrimination. K&R is entitled to judgment as a matter of law, on all four counts of the Complaint.

IT IS THEREFORE ORDERED that:

Defendant's Motion for Summary Judgment be, and the same hereby is, GRANTED.

DATED: December 16, 1997

ENTERED:

ARLANDER KEYS

United States Magistrate Judge

 
Notes:

*fn1 In his Second Amended Complaint ("Complaint"), Mr. Filipovic alleged that this incident occurred in May of 1993. However, the incident actually occurred in May of 1992. (Pl.'s 12(N) P 63.)

*fn2 There is no allegation that, in this letter of complaint, Mr. Filipovic claimed that the written warning was issued against him because of his national origin.

*fn3 After the investigation, Mr. Epstein allegedly called Mr. Filipovic a "Russian thief." Though Mr. Epstein is accused of making this comment in Mr. Filipovic's pleadings, (Pl.'s 12(N) at P21), Mr. Filipovic provided no evidence that this comment was made. It does not even appear in the portion of Mr. Filipovic's deposition provided to the Court. Thus, the Court will disregard that alleged comment.

*fn4 A prima facie case of discrimination in the context of an adverse employment action can be established by showing that the plaintiff: (1) is a member of a protected class; (2) was meeting the legitimate expectations of the employer; (3) suffered an adverse employment action; and (4) the employer treated similarly situated persons not in the protected class more favorably. Iovin v. Northwestern Mem'l Hosp., 916 F. Supp. 1395, 1405 (N.D. Ill. 1996). In addition to the McDonnell Douglas burden shifting method, discriminatory intent can also be shown circumstantially through such evidence as "suspicious timing, ambiguous statements oral or written, behavior towards or comments directed at other employees in the protected group, and other bits and pieces from which an inference of discriminatory intent might be drawn . . . ." Troupe, 20 F.3d at 736. Discriminatory intent can also be shown circumstantially by evidence, "whether or not rigorously statistical, that employees similarly situated to the plaintiff ... received systematically better treatment." Id.

*fn5 Because the Court has already concluded that the claim with respect to Mr. Sperling must fail, its analysis does not continue.

*fn6 Mr. Filipovic alleges that he was "falsely accused . . . of setting fires on K&R's premises and damaging K&R property." (Complaint P 17.) The circumstances surrounding this incident only became clear through Defendant's 12(M) P 31.

*fn7 Mr. Filipovic produced evidence that he had complained to K&R management about the work environment on the dock, and about his relationship with Mr. Epstein. (Pl.'s 12(N) P 29.) However, he did not provide evidence of the dates of these complaints, nor did he provide evidence that he had complained of national origin or age discrimination as part of these complaints.

*fn8 In order to recover under Title VII, Mr. Filipovic would also have to show that K&R was negligent in failing to prevent the harassment. Jansen v. Packaging Corp. of Am., 123 F.3d 490, 493 (7th Cir. 1997) (en banc, per curiam). However, since the Court concludes that Mr. Filipovic did not endure a hostile work environment, it does not reach that issue.

*fn9 Although in some cases, a nexus between the plaintiff's protected class status and the sexual harassment is demonstrated by the content of the harassment. See Doe, 119 F.3d at 576-77 n.10 (noting that certain sexual epithets which are often directed at women clearly reflect the gender-based animus that motivates them, making them inherently terms of sexual harassment); but see Galloway, 78 F.3d at 1167-68 (observing that "gendered" terms do not always create automatic inference of motivation based on gender animus).

*fn10 The sausage casing cleanup has not been sufficiently linked to Mr. Filipovic's national origin.

*fn11 Even where more severe misconduct occurs, it will not establish a hostile work environment if it is isolated, rather than pervasive. See Saxton v. AT&T, 10 F.3d 526, 533-34 (7th Cir. 1993) (finding that two sexual advances by a supervisor found insufficient to constitute a hostile work environment); see also Baskerville v. Culligan Int'l Co., 50 F.3d 428, 431 (7th Cir. 1995)(finding that nine comments spread over seven months did not establish a hostile work environment).